Is application of spoliation sanctions still a crapshoot?

After years of tinkering and fine-tuning, discovery-related amendments to the Federal Rules of Civil Procedure finally took effect on December 1. Courts across the US have spent the subsequent six months thinking of new and creative ways to make people with an interest in seeing these amendments succeed... pull out their hair.

It should go without saying that courts don't always apply rules as their makers intended. You need look no further than the 2006 rules amendments, which were supposed to curb the excesses of modern discovery, for evidence of this. It's all just well-intended redlining and debate until the rubber hits the road and judges are posed with actual motions for sanctions. Then D-day comes and the reality strikes: this is literally uncharted territory.

You'll recall that Rule 37(e), the federal spoliation rule, was amended in an attempt to standardize the application of sanctions for failures to preserve ESI. Specifically, large serial litigants and their lobbyists sought to ease an ever-growing and increasingly untenable preservation burden that ad hoc sanctions rulings and their precedential offspring have exacerbated. The basic thinking is that, if organizations with lots of information have more certainty around how and under what circumstances judges will level penalties for failures to preserve that information, they can shed more of it more aggressively without fear of being dinged in court. Under the new version of Rule 37(e), judges may only penalize parties in the most severe ways, such as precluding evidence, issuing an adverse inference instruction, or terminating the case entirely, where there is a showing that the alleged spoliating party acted intentionally.

Since December 1, at least 15 federal courts, including a federal appellate panel, have been presented the question of whether to impose sanctions for alleged failures to preserve ESI. Most of those instances unfolded according to plan, where judges have resisted handing down harsh sanctions barring clear showings the offending party lost ESI intentionally. But there are some wildcards in the mix to be sure, such as an Oklahoma court that granted an adverse inference without considering intent at all, and two others that followed suit for behavior they described, merely, as negligent.

There is also a clear conflict of opinion over whether judges retain their inherent powers to sanction parties for bad behavior, or whether the new rule "foreclosed reliance on inherent authority." At least one court has stated that, rule amendment or not, judges can issue the sanctions they see fit to achieve "orderly and expeditious" results. And another court concluded that the "relationship of the recent amendments to the existing case law" was not clear.

To help make sense of all this, Logikcull has compiled a chart of most if not all of the federal spoliation rulings considered since Dec. 1 of last year. The cheat sheet includes a thumbnail explanation of each decision, the rationale behind it, and links to the original orders. Download it below.